Wednesday, June 18, 2014

Skinning the Redskins

I have no interest in sports. Never had any. I don't care who wins
the world soccer championship, or comes out on top during the football, hockey
or baseball seasons, or which team wins the pennant or trophy. It's not that
I'm anti-sports. I am consummately indifferent. I guess I was born without a
"sports" organ. When work colleagues asked me if I'd watched
"the game" last night, my traditional response was: "When they
schedule the Pittsburgh Pirates versus the Green Bay Packers, then I'll take an
interest." That friendly retort usually drove home the idea that they
shouldn't invite me to join a football pool. I'm not likely, either, to go wild
in the streets, trashing shops and burning cars and being maced by riot police,
if the Lakers lose to the Chicago Cubs, the Oshkosh Bears, or the Winnipeg Penguins.

The landmark case, which appeared
before the Trademark Trial and Appeal Board, was filed on behalf of five Native
Americans. It was the second time such a case was filed….

Federal trademark law does not
permit registration of trademarks that “may disparage” individuals or groups or
“bring them into contempt or disrepute.” The ruling pertains to six different
trademarks associated with the team, each containing the word “Redskin.”

Commercially, what the ruling means is that while the team's
owners won’t be forced to change the team's name to something more saccharine
(or politically correct, e.g., "The Big Hulking Guys Who Chase Obloids"),
it has lost the right to control the usage of the team's name in its logos and
merchandising endeavors. That is, the name is up for grabs to whoever wants to
sell T-shirts, mugs, glasses and apparel under that name. The team's owners
would not be able to even license the team name to other parties.

Constitutionally, the de-registering amounts to a theft of
property without compensation. The suit by the five "Indians" against
the Redskins might be interpreted as having adhered to the "due
process" clause of the Fifth
and Fourteenth Amendments:

The government may not deprive
citizens of “life, liberty, or property” without due process of law. This means
that the government has to follow rules and established procedures in
everything it does. It cannot, for example, skip parts of trials, or deny
citizens their rights as protected by the Bill of Rights and by
law.

"Due process,"
in this instance, meaning the legalized theft of the Redskins name. "See?
We followed the rules. The Patent and Trademark Office followed the rules. That's
'due process,' isn't it?"

But
whether a perfect storm of those issues is gathering is far from clear.
Economically, the league isn’t likely to feel much of a pinch. Most of its
revenues derive from TV licensing, although merchandise sales are significant.
The nation’s most popular sports league, the NFL generates revenues estimated
at more than $9billion
annually and the Redskins, at $1.7 billion, were rated the league’s third-most
valuable team by Forbes magazine last year. Their annual revenue was estimated
at $373million.

This misses the point. The potential or
real loss of revenue resulting from the decision is irrelevant. The Patent and
Trademark Office's decision, based on a suit filed by five individuals, constituted
the theft of property, on the most specious of reasons, that the
"name" (and associated symbols) was "disparaging." The
Office as much as said: "Your name and symbols are offensive to a certain
protected class of citizens, and hurts its feelings, so this agency is
delegitimizing said name and symbols as protectable and licensable property. The
exclusivity of said name and symbols is hereafter null and void."

The actual document of the decision
is 177 pages long, and includes many pages of some highly dubious documentation
submitted by the complainants to buttress their case, including citations of
novels, movies, TV shows, symbols of Indians from the past (such as dime or
tobacco store Indian statues). The five complainants, Amanda Blackhorse, Marcus
Briggs-Cloud, Philip Gover, Jillian Pappan, and Courtney Tsotigh, purport to
represent all American Indians (aka "Native Americans"; anyone born
in the U.S. can claim to be a "Native American." The term is meaningless).

Boren's article goes on to report:

As a
league official said, “The decision does not mean that the team loses
its trademark protection. It loses the benefits of federal registration, but
the team will continue to protect its trademarks against third parties using
it. The team has what is called ‘common law rights,’ which do not require
a trademark registration.”

Gabriel
Feldman, the director of the sports law program at Tulane
University, agreed with that interpretation. “This ruling doesn’t
eliminate the ability of the Washington Redskins to use their trademark or
prevent others from using it,” Feldman told the Post’s Mark Maske. “But it does
limit their ability to enforce their rights. It ultimately could change the
financial analysis about whether to keep the name or change it. … At the end of
the day, this likely still will be a financial decision. I don’t know that this
changes the political pressure. … This is clearly not the first time there’s
been a public declaration that the name is disparaging and offensive.”

Were the
ruling to stand, bootleggers could pump out cheap jerseys, jackets and other
trinkets bearing the team’s logo and name without the team collecting licensing
fees. It could even make the Redskins
name and logo even more pervasive than it is now.

Despite a
well-orchestrated public relations pressure campaign that has been joined by
the usual cadre of liberal special-interest groups, polls have consistently
found that there’s never been more than a tiny minority of the public at large
and, more importantly, of American Indians themselves, who think the name is
offensive. Ninety percent of the American Indians told pollsters for the
Annenberg Public Policy Center in 2004 that the name didn’t bother them.

George
Preston Marshall, the founding owner of the club, chose “Redskins”
in 1933 to honor Lone Star Dietz, the coach and an American Indian. “I admire
the Redskins
name,” the late Jack Kent Cooke, whose family sold the team to Dan Snyder in
1999, once said. “I think it stands for bravery, courage and a stalwart spirit,
and I see no reason why we shouldn’t continue to use it.”

Over
the weekend, a couple of random Washington players tweeted approval of
president/G.M. Bruce Allen’s response
to Senator Harry Reid regarding a 50-Senator
letter opposing the team name. Now, more than 50 Native American and
civil rights groups are urging all other players to take a stand in opposition
to the name.

In a
letter dated Wednesday but released to the media today, more than 75 different
organizations have asked NFL players to speak out against the team’s
name. The letter comes less than a week after NFLPA president Eric Winston
explained on PFT Live that the players union doesn’t
plan to get in the middle of the lingering controversy.

“Despite
team officials claiming the name ‘honors’ Native Americans, the ‘R-word’ does
exactly the opposite,” the letter states. “It was the word screamed at Native
Americans as they were dragged at gunpoint off their lands, it is the word for
the object needed to collect a bounty—literally ‘red skins’—ripped from dead Native
American bodies and exchanged for money as proof of kill, and it is a term that
still denigrates Native Americans today. The name does not honor people of
color, instead it seeks to conceal a horrible segment of American history and
the countless atrocities suffered by Native Americans….”

No mention of the atrocities suffered by
whites at the hands of Indians from coast to coast in the 18th and
19th centuries. Well, they don’t matter, do they?And, of course, more of the usual suspects:

The
list of organizations sending the letter includes the NAACP, the
Anti-Defamation League, the National Gay and Lesbian Task Force, the National
Fair Housing Alliance, and many Native American groups.

How many Indians are we talking about who
feel "disparaged" or "offended" by the Redskins' team name?
One and a half handfuls out of tens of thousands of individuals claiming to be
full-blooded, half-blooded, and even fractional Indians, according to a number
of articles on the subject. For example, in September 2004, the Washington
Times ran an article, "Indians
give a cheer for the name 'Redskins'":

Ninety
percent of American Indians say the name Washington Redskins does not offend
them, according to a new national survey.

Only 9
percent of polled Indians say they find the name of Washington’s professional
football team “offensive,” according to the results of the University of
Pennsylvania’s National Annenberg Election Survey. The other 1 percent did not
respond.

“I
thought more people would have had” problems with the name, said Adam Clymer,
political director of the survey, which questioned more than 65,000 Americans
of all races and ethnic groups between Oct. 7, 2003, and Sept. 20, 2004.

There are bogus Indians. The most notorious of them still living are Elizabeth
Warren, a Harvard professor and politician who claims to have Cherokee
blood in her background. There is Ward Churchill, another obnoxious academic
who called all the people who died on 9/11 in the World Trade Center "Little
Eichmanns." He also claimed to be of Cherokee blood, until real Cherokees outed
him. Reason Magazine ran an interesting column in 2012 on the most notable fake
Indians, "5
Other Fake Indians Besides Elizabeth Warren."

My car once broke down in Gallup, New
Mexico on a cross-country trip. Nearby was a Navajo Indian reservation. The mechanics
who fixed my car were half-Navajo brothers who did not live on the reservation.
We "bonded," because their family name was…Cline, as well. They weren’t
"red" or even bronze, but rather tan, grew moustaches (full-bloods
are genetically
incapable of growing facial hair or hair anywhere on their bodies), and
didn't have many nice things to say about the reservation Indians (drunks, lazy,
always fighting, looking for a fast buck, etc.). I introduced them to the idea
that perhaps being dependents of the federal government wasn’t doing them much
of a favor. The indolence encouraged by the federal government was inherently
destructive. They agreed.

I think the only "redskins"
that might exist have a severe case of sunburn.

And the only "redskins" who
would feel "offended" by the name are at root tribalists who have a
vested interest in being a "minority" ready to accept free money and
taxpayer-paid benefits. The federal government is inclined to make them
dependent, too.

But, then, the federal government, especially
under President Barack Obama, wants to put the whole country on a reservation.